State v. Kudlacz

656 	288 NEBRASKA REPORTS
State of NebraSka, appellee, v.
robert f. kudlacz, appellaNt.
850 N.W.2d 755
Filed July 25, 2014. 	No. S-13-570.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Appeal and Error. A case is not authority for any point not necessary to be
passed on to decide the case or not specifically raised as an issue addressed by
the court.
3. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court
will give statutory language its plain and ordinary meaning.
4. Statutes: Legislature: Intent. In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordinary, and popu-
lar sense.
5. Probation and Parole: Convictions. Confinement in a county jail as a condition
of probation does not bar a person from seeking to have a conviction set aside
pursuant to Neb. Rev. Stat. § 29-2264 (Supp. 2013).
6. ____: ____. It is the province of the sentencing court to set aside a conviction
pursuant to Neb. Rev. Stat. § 29-2264 (Supp. 2013).
Appeal from the District Court for Sarpy County: david
k. arterburN, Judge. Reversed and remanded for further
proceedings.
Joseph Kuehl, of Lefler & Kuehl Law Office, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
H eavicaN, c.J., WrigHt, coNNolly, StepHaN, MccorMack,
M iller-lerMaN, and caSSel, JJ.
caSSel, J.
INTRODUCTION
The question posed in this appeal is whether a condition
requiring periodic confinement of the offender in the county
jail, as part of a sentence of probation, prevents a court
from setting aside the conviction pursuant to Neb. Rev. Stat.
§ 29-2264 (Supp. 2013). The district court stated that it did,
relying on language in one of our cases. We disagree. Our prior
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:34 AM CST

STATE v. KUDLACZ 	657
Cite as 288 Neb. 656
decision was not controlling on this point. And the plain lan-
guage of the statute states otherwise. We reverse, and remand
for further proceedings.
BACKGROUND
Robert F. Kudlacz pled guilty to one count of issuing a bad
check, $100 to $500. The district court sentenced him to proba-
tion for a period of 15 months. As a condition of his probation,
he was ordered to obtain suitable employment or to provide
proof of his efforts to obtain suitable employment. He was fur-
ther ordered to pay restitution.
Kudlacz failed to provide proof of seeking employment
or being employed and to make payments in restitution.
Consequently, the district court continued his probation for a
period of 24 months and amended the conditions of his proba-
tion to include confinement in the county jail for a period of 90
days to be served on weekends.
Upon satisfactory completion of the conditions of his proba-
tion, the district court entered an order releasing Kudlacz from
probation pursuant to § 29-2264(1). He then moved the court
to set aside his conviction pursuant to § 29-2264(2). That sub-
section provides:
Whenever any person is convicted of a misdemeanor
or felony and is placed on probation by the court or is
sentenced to a fine only, he or she may, after satisfac-
tory fulfillment of the conditions of probation for the
entire period or after discharge from probation prior to
the termination of the period of probation and after pay-
ment of any fine, petition the sentencing court to set aside
the conviction.1
Section 29-2264(3) and (4) provide various factors for a sen-
tencing court to consider in determining whether to set aside
a conviction. These factors include (1) the behavior of the
offender after sentencing, (2) the likelihood that the offender
will not engage in further criminal activity, (3) any other infor-
mation the court considers relevant, and (4) whether setting
1 § 29-2264(2).

658 	288 NEBRASKA REPORTS
aside the conviction is in the best interests of the offender and
consistent with the public welfare.2
After a hearing, the district court denied Kudlacz’ motion.
The court determined that he did not fall within the class
of persons whose convictions may be set aside pursuant to
§ 29-2264. Specifically, the court relied upon language appear-
ing in McCray v. Nebraska State Patrol.3 In the background sec-
tion of that opinion, this court stated that “[s]ection 29-2264(2)
empowers a court to set aside certain criminal convictions in
which the sentence does not include incarceration.”4 Because
the conditions of Kudlacz’ probation included county jail time,
the district court reasoned that it was constrained by McCray to
deny the requested relief.
Kudlacz filed a timely notice of appeal, and the case was
assigned to the Nebraska Court of Appeals’ docket. In response
to Kudlacz’ opening brief, the State filed a suggestion of
remand and accompanying brief. In its accompanying brief, the
State argued that the clear language of § 29-2264(2) did not
deny relief to persons confined to the county jail as a condition
of probation. However, the State did not cite any other decision
of this court or the Court of Appeals in support of its sugges-
tion of remand.
The Court of Appeals entered a show cause order granting
the parties 10 days to file a stipulation indicating that the mat-
ter should be submitted on Kudlacz’ opening brief and the brief
accompanying the State’s suggestion of remand. Otherwise, the
Court of Appeals would overrule the suggestion of remand, and
the matter would proceed with briefing.
In response to the show cause order, the parties filed a
stipulation that the matter be submitted and an opinion issued
without further briefing or oral argument. Specifically, the
parties stipulated that “this matter should be remanded to the
district court with instructions to consider the factors set forth
in Neb. Rev. Stat. § 29-2264 and determine whether Kudlacz’s
2 See § 29-2264(3) and (4).
3 McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
4 Id. at 4, 710 N.W.2d at 304.

STATE v. KUDLACZ 	659
Cite as 288 Neb. 656
conviction should be set aside based upon consideration of
those factors.”
We moved the case to our docket pursuant to statutory
authority.5 As this case presented an issue of statutory inter-
pretation with no prior guidance other than our statement in
McCray, we did not consider summary remand to be appro-
priate. We overruled the suggestion of remand, set aside the
waiver of oral argument without prejudice, and ordered the
State to file a brief. After briefing was completed, we heard
oral arguments.
ASSIGNMENT OF ERROR
Kudlacz assigns that the district court erred in overruling the
motion to set aside his conviction.
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.6
ANALYSIS
As noted above, this appeal presents the issue of whether
a person whose sentence of probation included a condition of
confinement in the county jail may have his or her convic-
tion set aside pursuant to § 29-2264. In this case, Kudlacz
was given jail time as a condition of probation. Neb. Rev.
Stat. § 29-2262(2)(b) (Reissue 2008) specifically authorizes
a court to require the offender, as a condition of probation, to
be “confined periodically in the county jail” subject to cer-
tain specified maximum time limits. Relying upon McCray,
the district court concluded that it was unable to consider
whether Kudlacz’ conviction should be set aside, because he
had been imprisoned as a condition of probation. As noted
above, in McCray, we stated that § 29-2264 empowers a court
to set aside certain convictions in which the sentence does not
include incarceration.7
5 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
6 Heckman v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837
N.W.2d 532 (2013).
7 See McCray, supra note 3.

660 	288 NEBRASKA REPORTS
[2] Our statement in McCray was not necessary to the deci-
sion in that case and carries no precedential weight on the
point before us in the instant case. McCray was a sex offender
registration case in which the defendant challenged the use
of convictions that had been set aside in determining his risk
of recidivism.8 Our analysis with respect to § 29-2264 was
focused solely on the use of convictions after they had previ-
ously been set aside; we were not presented with the issue of
whether the defendant’s convictions were eligible to be set
aside. A case is not authority for any point not necessary to
be passed on to decide the case or not specifically raised as
an issue addressed by the court.9 In McCray, it was not neces-
sary to consider whether the defendant’s convictions could be
set aside under § 29-2264. Thus, the district erred in deeming
our statement as controlling. We therefore examine Kudlacz’
eligibility to have his conviction set aside, with no deference
to McCray.
[3,4] Section 29-2264(2) is not ambiguous. Absent any-
thing to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.10 And in construing a
statute, a court must determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense.11
[5] The plain language does not support the reading derived
by the district court from McCray. We have already quoted
the words of the statute. It authorizes any person convicted
of a misdemeanor or a felony and placed on probation or
sentenced to a fine only to petition the sentencing court to
set aside the conviction after satisfactory fulfillment of the
conditions of probation for the entire period, or after early
discharge, and payment of any fine. The plain language simply
8 See id.
9 Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687 N.W.2d 689
(2004).
10 SourceGas Distrib. v. City of Hastings, 287 Neb. 595, 844 N.W.2d 256
(2014).
11 State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).

STATE v. KUDLACZ 	661
Cite as 288 Neb. 656
does not address jail time as a condition of probation. Had the
Legislature wished to disqualify those persons whose sentences
of probation included a condition of confinement in the county
jail, it easily could have done so. But it did not. We therefore
hold that confinement in the county jail as a condition of pro-
bation does not bar a person from seeking to have a conviction
set aside pursuant to § 29-2264.
[6] Thus, the district court erred in overruling Kudlacz’
motion on the basis that his conviction could not be set aside
pursuant to § 29-2264(2). Kudlacz was sentenced to probation
and discharged after satisfactory fulfillment of the conditions
of probation for the entire period. The condition of county
jail confinement did not preclude setting aside the conviction
under § 29-2264. But it is the province of the sentencing court
to set aside a conviction.12 The court should have considered
whether Kudlacz’ conviction should be set aside pursuant to
the factors specified by § 29-2264(3) and (4).
CONCLUSION
Section 29-2264(2) permits specified criminal convictions
to be set aside. But the statutory language does not disqualify
relief merely because the person placed on probation was sub-
jected to county jail confinement as a condition of probation.
The district court erred in concluding that language in our case
law instructed otherwise. However, it falls to the district court
to determine, in the first instance, whether to set aside the
conviction. And in doing so, the court is required to consider
the factors specified in § 29-2264(3) and (4). We reverse the
district court’s order and remand the cause for further proceed-
ings consistent with this opinion.
reverSed aNd reMaNded for
furtHer proceediNgS.
12 Id.